State v. Tangie

• Decision Date: 07 September 2000
• Docket Number: No. 98-0896.,98-0896.
• Citation: 616 N.W.2d 564
• Parties: STATE of Iowa, Appellee, v. Evelyn Lou TANGIE, Appellant.
• Court: Iowa Supreme Court

616 N.W.2d 564

STATE of Iowa, Appellee, v. Evelyn Lou TANGIE, Appellant.

No. 98-0896.

Supreme Court of Iowa.

September 7, 2000.

R.E. Breckenridge of Johnson, Hester, Walter & Breckenridge, L.L.P., Ottumwa, for appellant.

Thomas J. Miller, Attorney General, Karen Doland and Douglas D. Hammerand, Assistant Attorneys General, Victoria Siegel, County Attorney, and Ronald Kelly, Assistant County Attorney, for appellee.

Considered en banc.

LARSON, Justice.

Evelyn Lou Tangie was convicted by a jury of second-degree murder in violation of Iowa Code section 707.3 (1997). The court of appeals reversed, and we granted the State's application for further review. We vacate the decision of the court of appeals and affirm the judgment of the district court.

I. Facts and Prior Proceedings.

The body of the defendant's former boyfriend, John Terry, was discovered in rural Wapello County. The cause of death was a blow to the head with a blunt object. A pickax handle with Terry's blood on it was found nearby.

Investigating officers contacted Tangie, who soon became entangled in conflicting stories about her knowledge of Terry's death. She first said the victim had left her house, intoxicated, on the night he disappeared, and she never saw him again. She did not mention being at the murder scene. Later, she told a different version of events. She told officers Terry was rough to her and on numerous occasions she had unsuccessfully asked Terry to move out of her house. Terry kept going to her for money, according to her. Tangie told the officers she had gone with Terry and Ben Schreiber to see a mobile home on the night of the murder. Schreiber drove the car, the victim sat in the front seat, and the defendant sat in the back, according to her. When they got to the mobile home, she and the victim walked, holding hands, toward the mobile home. Schreiber was behind them. She heard some thuds, and Terry fell to the ground. Tangie told officers she did not see the pickax handle Schreiber used until he later put it in the backseat of his car. She told officers that Schreiber threw the handle out the window and told her she was "just as involved" as he was, and she had better not tell anyone about it. Tangie said she and Schreiber went to a friend's house so they could get their story straight for the police. She told officers Schreiber burned the clothes he was wearing, and she threw hers into a trash bin at work.

Tangie was charged with first-degree murder. She gave notice of her intent to call Schreiber as a witness, but he invoked his Fifth Amendment privilege against self-incrimination. Tangie filed a motion in limine to prohibit the State's use of evidence regarding statements attributed to Schreiber. She claimed such evidence would be hearsay and would violate her Sixth Amendment right to confront the witnesses against her.

II. Issues on Appeal.

The defendant raises five issues: (1) the admission of statements made by Schreiber, (2) the court's denial of her right to obtain evidence under Brady v. Maryland and the opportunity to impeach a State witness based on that evidence, (3) the court's refusal to allow her to depose a State rebuttal witness, (4) the court's instruction regarding inferred intent, and (5) the sufficiency of the evidence.

III. The Statement by the Alleged Coconspirator.

The defendant contends evidence of statements made by Schreiber was hearsay and violated her right of confrontation. The gist of Schreiber's statements, which came in through the testimony of a Charles Denham, was that Schreiber (who was also charged with the murder) had told Denham that he and the defendant were going to get the victim drunk and "drop him off" in Des Moines. Schreiber asked Denham, his employer, for money to buy gas.

We review the admission of hearsay evidence for errors at law. State v. Moeller, 589 N.W.2d 53, 54 (Iowa 1999). We review claims under the Confrontation Clause de novo. State v. Jefferson, 574 N.W.2d 268, 271 (Iowa 1997).

A. Preservation of error. At the outset, we must determine whether Tangie has preserved error with respect to the hearsay and Confrontation Clause issues. Prior to trial, Tangie filed a motion in limine to prevent Denham's testimony. The motion asserted both hearsay and Confrontation Clause arguments, but the court did not rule on the motion prior to trial. At trial the defendant pressed for a ruling on her hearsay objection, but she did not raise a Confrontation Clause argument. In response to the State's argument that the evidence should be admitted under Iowa Rule of Evidence 801(d)(2)(E), the court made it clear it would wait until the evidence was proffered before it ruled on the objection, saying "[w]e'll cross that bridge when we get there, counsel." Defense counsel then asked to make an offer of proof, and the court responded as follows:

THE COURT: Counsel, I have no idea as to what context this is going to be brought up in. You can forewarn me prior to the time that it starts to come up, and we'll take a look at it then.

Later, during the State's examination of Denham, defense counsel asked that a hearing be held in the absence of the jury to allow the court to hear the evidence in question. The court granted the request. In that hearing, Denham related the conversation with Schreiber concerning the plan to get the victim drunk and drop him off in Des Moines. The defendant's lawyer then renewed the hearsay objection, and the court said it "finds that the statements are admissible under [Iowa Rule of Evidence] 801(d)(2)." The Confrontation Clause was not raised in this hearing. In fact, the only time it was ever mentioned was in the defendant's written motion in limine. Ordinarily, error claimed in a court's ruling on a motion in limine is waived unless a timely objection is made when the evidence is offered at trial. State v. Edgerly, 571 N.W.2d 25, 29 (Iowa App.1997) (citing State v. Davis, 240 N.W.2d 662, 663 (Iowa 1976)). However, where a motion in limine is resolved in such a way it is beyond question whether or not the challenged evidence will be admitted during trial, there is no reason to voice objection at such time during trial. In such a situation, the decision on the motion has the effect of a ruling.

State v. Miller, 229 N.W.2d 762, 768 (Iowa 1975). This rule is inapplicable in this case because the court did not, in addressing the motion in limine, "resolve[ ] [the issue] in such a way it is beyond question whether or not the challenged evidence will be admitted during trial...." Id. In fact, the court made it clear it would not rule on the hearsay objection until the evidence was offered at trial, and it gave no indication at all how it would rule on a Confrontation Clause argument had the argument been presented to it. We conclude the defendant has failed to preserve a Confrontation Clause argument and has therefore waived it.

It is likely defense counsel did not press the Confrontation Clause issue because, as the State argues, there is no merit in the argument in any event. Our court of appeals, in reversing on the Confrontation Clause issue, relied on the Supreme Court cases of Lilly v. Virginia, 527 U.S. 116, 119 S.Ct. 1887, 144 L.Ed.2d 117 (1999), and Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), both of which must be distinguished. These cases involved confessions by nontestifying codefendants who stood to gain by implicating the defendant. In the present case, the evidence was not admitted as a confession by a codefendant but as a statement by a codefendant in furtherance of a conspiracy under Iowa Rule of Evidence 801(d)(2)(E). The identical federal rule of evidence, according to the Supreme Court, is so firmly established there is no need for a separate Confrontation Clause analysis. According to the Court,

[w]e think that [prior Supreme Court] cases demonstrate that co-conspirators' statements, when made in the course and in furtherance of the conspiracy, have a long tradition of being outside the compass of the general hearsay exclusion. Accordingly, we hold that the Confrontation Clause does not require a court to embark on an independent inquiry into the reliability of statements that satisfy the requirements of Rule 801(d)(2)(E).

Bourjaily v. United States, 483 U.S. 171, 183-84, 107 S.Ct. 2775, 2783, 97 L.Ed.2d 144, 158 (1987).

B. Merits of arguments. For the reasons just discussed, we reject Tangie's Confrontation Clause argument and proceed to the hearsay issue. The district court allowed evidence of Schreiber's out-of-court statement under the coconspirator exception of Iowa Rule of Evidence 801(d)(2)(E), which provides a statement is not hearsay if "[t]he statement is offered against a party and is ... a statement by a coconspirator of a party during the course and in furtherance of the conspiracy." Tangie argues the district court erred in admitting the evidence under this rule because the State failed to prove the existence of a conspiracy and failed to show the statement was made during and in furtherance of a conspiracy.

Under rule 801(d)(2)(E), statements by a coconspirator are admissible against the party as an admission of a party-opponent. State v. Ross, 573 N.W.2d 906, 914 (Iowa 1998). Before the statement is admissible, the court must find, by a preponderance of the evidence, that a conspiracy to commit a crime existed between the declarant and the nonoffering party. In re Property Seized from DeCamp, 511 N.W.2d 616, 621 (Iowa 1994). Such a finding is implicit when the district court admits the statement into evidence. State v. Florie, 411 N.W.2d 689, 695 (Iowa 1987). We review a district court's determination that a conspiracy existed under the substantial-evidence test. Id.

The defendant contends the foundation for admitting evidence under rule 801(d)(2)(E) must be established by evidence independent of the out-of-court statement itself. Otherwise, admitting an out-of-court...